Whitley v. Bowersox
MEMORANDUM AND ORDER re: 14 PRO SE MOTION release on bail from the DOC pending disposition of habeas petition filed by Petitioner D'Andre Whitley motion is DENIED.. Signed by Magistrate Judge John M. Bodenhausen on 6/9/17. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:16 CV 01537 JMB
MEMORANDUM AND ORDER
Petitioner D’Andre Whitley (“Whitley”) previously filed a pro se petition, seeking a Writ
of Habeas Corpus, pursuant to 28 U.S.C. § 2254. (ECF No. 1) Whitley has filed a motion
asking that he be released on bail pending a determination on the petition. (ECF No. 14) All
matters are pending before the undersigned United States Magistrate Judge, with consent of the
parties, pursuant to 28 U.S.C. § 636(c). The Court concludes that the matter of Whitley’s motion
to be released on bail may be resolved on the existing record. The Court further concludes that
the motion will be denied.
On February 29, 2012, a jury in the City of St. Louis, Missouri, convicted Whitley of
assault in the first degree, first degree burglary and two companion counts of armed criminal
action. On the basis of these convictions, the trial court sentenced Whitley as a prior and
persistent offender to 20 years in prison.
These charges stemmed from the shooting of Kelvin Nelson in 2010. At trial, Whitley
was represented by Robert Taaffe. Approximately ten months prior to trial, the prosecution filed
a motion to disqualify Mr. Taaffe on the basis that he had represented Nelson on several prior
occasions in unrelated matters. (Resp. Ex. D at 21) It does not appear from the record that
Whitley joined this motion, attempted to terminate Taaffe’s representation, or expressed any
reservations regarding his trial counsel prior to or during the trial. The trial court denied the
motion. (Id. at 25)
Whitley raised the issue of his trial counsel’s conflict of interest in his post-conviction
relief (”PCR”) filings under Rule 29.15. (Resp. Ex. F at 8, 14) Whitley filed both a Motion to
Vacate, Set Aside or Correct the Judgment or Sentence Pursuant to Rule 29.15 (Id. at 6) and an
amended motion (Id. at 12). Both pleadings (apparently mistakenly) refer to prosecution witness
Robert Turner, rather than Nelson, as the source of Taaffe’s alleged conflict.
At the evidentiary hearing on the PCR motion, Whitley’s PCR counsel attempted to
orally amend the motion to refer to Nelson in the conflict-of-interest claim. (Resp. Ex. J at 5-6)
The PCR court reserved ruling on the issue of amendment and allowed Whitley to adduce
evidence on the issue of Taaffe’s possible conflict with Nelson. (Id. at 6) In the end, the PCR
court found that any issue of a conflict of interest regarding Nelson had been waived by failing to
timely raise the issue in either the original or amended Rule 29.15 Motion. (Resp. Ex. F at 66)
The PCR court also found that the claim failed to establish an actual conflict of interest on the
merits, as none of Taaffe’s prior representations of Nelson were related to Whitley or were active
at the time of trial. (Id.) The Missouri Court of Appeals, in reviewing the PCR proceedings,
agreed with both of these conclusions and denied relief. (Resp. Ex. I at 5-6)
Whitley filed his Petition for habeas review in September 2016. (ECF No. 1) In it, he
submits five grounds on which he alleges his constitutional rights were violated. Two of the
grounds involve trial counsel’s alleged conflict of interest— Ground Three (alleging that the trial
court erred in failing to disqualify Taaffe due to his previous representation of the victim), and
Ground Five (asserting that Taaffe was ineffective due to the alleged conflict). (Id. at 8 and 16)
These two grounds form the basis of Whitley’s instant motion.
Whitley has filed a motion requesting that he be released on bail from the custody of the
State of Missouri during the pendency of his habeas petition. Although there is no specific
statutory authorization, it is within the inherent power of federal courts to release a state prisoner
on bond pending decision on an application for a writ of habeas corpus. Martin v. Solem, 801
F.2d 324, 329 (8th Cir. 1986) citing In re Wainwright, 518 F.2d 173, 174 (5th Cir.1975). Such
an action “requires the habeas petitioner to show not only a substantial federal constitutional
claim that presents not merely a clear case on the law, but a clear, and readily evident, case on
the facts” as well as “the existence of some circumstance making [the request] exceptional and
deserving of special treatment in the interests of justice.” Id. As a result, courts very rarely grant
In the instant matter, Whitley’s motion does not meet the standard required for the Court
to grant bail during the pendency of the petition. The grounds discussed by Whitley in his
motion do not present a clear case on either the law or the facts, nor does Whitley demonstrate
any special circumstances that merit different treatment than the normal habeas process.
As an initial matter, there is a significant question as to whether the conflict-of-interest
grounds are even properly before the Court, as they may have been procedurally defaulted. At
trial, Whitley did not join the prosecution’s motion to disqualify Taaffe or attempt to terminate
his representation. This raises the question of whether Whitley waived his argument that the trial
court erred in failing to grant the motion. The ineffective-assistance-of-counsel version of the
claim may also be procedurally barred. In both his original motion for post-conviction relief and
the amended version, Whitley identified Robert Turner as the source of Taaffe’s alleged conflict.
It was not until the PCR evidentiary hearing, after the time specified for amendment, that counsel
attempted to correct this apparent oversight via oral motion. Both the PCR court and the
subsequent appellate panel found that Whitley’s allegations regarding a conflict of interest
involving Taaffe and Nelson were therefore waived, although each proceeded to address the
merits of the claims anyway. There is a high likelihood that Whitley’s related grounds will be
rejected as procedurally defaulted; therefore, he does not present a clear case that he will be
entitled to relief on these grounds.
Further, Whitley has not presented a clear case on the facts. It appears that Taaffe’s prior
representation of Nelson was wholly unrelated to either Whitley or the events underlying the
charges in this case. It had been in excess of three years since Taaffe represented Nelson.
Whitley also fails to identify what effect the alleged conflict of interest had on Taaffe’s
representation or the conduct of the trial.
Whether the grounds which form the basis of this motion are procedurally defaulted or
not, they are not likely to succeed. Both grounds were raised in the various proceedings before
the Missouri Court of Appeals, which reviewed the same arguments and rejected them.
Whitley’s habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub.L. 104–132, 110 Stat. 1217. The AEDPA requires review of a petitioner’s
claims that is “limited and deferential” to the state court’s decisions. Lomholt v. Iowa, 327 F.3d
748, 751 (8th Cir. 2003). The Court will afford such deference to the Missouri Court of
Appeals’ decisions on the issues of conflict of interest, further reducing Whitley’s probability of
eventual success on these grounds in the Court’s full review of the petition.
Finally, Whitley has not alleged any extraordinary circumstances which merit the
“special treatment” of a federal court conditionally releasing him from state custody after he has
been convicted of multiple crimes. As the Eighth Circuit noted in Martin, “there is nothing
unusual about a claim of unlawful confinement in a habeas proceeding.” 801 F.2d at 330.
The Court concludes that Whitley is not entitled to release on bond during the pendency
of his petition for federal habeas relief on the grounds presented in his motion. He has failed to
establish that he has a clear case on either the law or the facts with regard to his conflict-ofinterest claims. He has also failed to show what special circumstances would merit such
treatment even had he a clearly meritorious case.
IT IS HEREBY ORDERED that the Motion for Release on Bail From the Department
of Corrections Pending Disposition of Habeas Petition (ECF No. 14) is DENIED.
Dated this 9th day of June, 2017.
/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
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